Judge Rules 24 White-tailed Deer Out Of Upper Macungie Tract Biologist Won Zoning Approval To Study The Animals, But Neighbors Challenged The Variance In Court.

March 03, 2000|by DEBBIE GARLICKI, The Morning Call

A Lehigh County judge has reversed a decision of the Upper Macungie Township Zoning Hearing Board granting a variance to a biologist who wants to keep 24 white-tailed deer on his property.

Judge Lawrence J. Brenner ruled Monday that the board erred in September when it granted the application of Vincent Fugazzotto for a variance to keep the herd on his 4.3-acres at 6646 Androsky Drive.

Fugazzotto wanted to study the deer and had obtained a propagation permit from the Pennsylvania Game Commission that would allow him to buy and sell white-tailed deer.

Fugazzotto proposed erecting a 9-foot fence around two pens.

After the board granted the variance, adjoining property owners Arlan L. and Joyce F. Epting appealed the decision to court.

Fugazzotto had requested a variance under a section of the zoning ordinance that governs keeping pets. The ordinance mentions dogs, cats, pigeons and similar fowl, rabbits and horses, and says uses won't be permitted if they create nuisances, health hazards or public safety hazards.

The ordinance defines keeping pets as `the keeping of domestic animals that are normally considered to be kept in conjunction with the dwelling for the pleasure of the resident family."

That means dogs, cats and other animals commonly sold in pet shops.

The ordinance says: `Only those pets that are domesticated and are compatible with a residential character shall be permitted."

Brenner said there was undisputed testimony that white-tailed deer are not domesticated animals and therefore are not permitted.

He also ruled that Fugazzotto didn't show that there are unique physical circumstances or conditions that create an unnecessary hardship and preclude the owner from using land for its permitted purposes, as the zoning law requires.

"This requirement is established only when it is shown that compliance with the zoning ordinance could render the property practically useless," Brenner said.

Testimony from a zoning hearing showed that the property could be used for other things and there is no hardship that required Fugazzotto to have the deer on that property, Brenner said.

He concluded that the zoning board committed an error of law and abused its discretion because Fugazzotto didn't meet his burden of showing the need for the variance.